Former Deputy Attorney General James Comey just completed his testimony before the Senate Judiciary Committee. Much of the testimony concerned the inicident on March 11, 2004, when Comey, AG Ashcroft and AAG Jack Goldsmith (OLC) refused to sign off on the legality of the NSA "terrorist surveillance" program.

Unfortunately, I missed the first half of the testimony. CSPAN did not cover it, and I'm told that committee webcasts are not recorded! (which seems remarkably short-sighted). But Paul Kiel's very helpful summary is here, and I now have a transcript of the testimony. READ IT. It's just about the most dramatic testimony I can recall in a congressional committee since John Dean.

Comey testified as follows:

(i) that he, OLC and the AG concluded that the NSA program was not legally defensible, i.e., that it violated FISA and that the Article II argument OLC had previously approved was not an adequate justification (a conclusion prompted by the New AAG, Jack Goldsmith, having undertaken a systematic review of OLC's previous legal opinions regarding the Commander in Chief's powers);

(ii) that the White House nevertheless continued with the program anyway, despite DOJ's judgment that it was unlawful;

(iii) that Comey, Ashcroft, the head of the FBI (Robert Mueller) and several other DOJ officials therefore threatened to resign;

(iv) that the White House accordingly -- one day later -- asked DOJ to figure out a way the program could be changed to bring it into compliance with the law (presumably on the AUMF authorizaton theory); and

(v) that OLC thereafter did develop proposed amendments to the program over the subsequent two or three weeks, which were eventually implemented.

The program continued in the interim, even after DOJ concluded that it was unlawful.

Note that Comey homself was the Acting AG at the time, with Ashcroft being in the hospital for surgery. As the New York Times previously reported, and as Comey recounted today in remarkably dramatic detail -- set out below -- the White House (Andy Card and Judge Gonzales) actually attempted to have Ashcroft overrule Comey even though Ashcroft was ailing and not wielding the powers of the AG at the time. According to Comey today: "I was angry. I thought I had just witnessed an effort to take advantage of a very sick man who did not have the powers of the attorney general."

Most importantly: Can anyone think of any historical examples where the Department of Justice told the White House that a course of conduct would be unlawful (in this case, a felony), and the President went ahead and did it anyway, without overruling DOJ's legal conclusion?

Excerpt from Comey testimony:

COMEY: In the early part of 2004, the Department of Justice wasengaged -- the Office of Legal Counsel, under my supervision -- in areevaluation both factually and legally of a particular classifiedprogram. And it was a program that was renewed on a regular basis,and required signature by the attorney general certifying to itslegality.

And the -- and I remember the precise date. The program had tobe renewed by March the 11th, which was a Thursday, of 2004. And wewere engaged in a very intensive reevaluation of the matter.

And a week before that March 11th deadline, I had a privatemeeting with the attorney general for an hour, just the two of us, andI laid out for him what we had learned and what our analysis was inthis particular matter.

And at the end of that hour-long private session, he and I agreedon a course of action. And within hours he was stricken and takenvery, very ill...

SCHUMER: (inaudible) You thought something was wrong with how itwas being operated or administered or overseen.

COMEY: We had -- yes. We had concerns as to our ability tocertify its legality, which was our obligation for the program to berenewed.

The attorney general was taken that very afternoon to GeorgeWashington Hospital, where he went into intensive care and remainedthere for over a week. And I became the acting attorney general.

And over the next week -- particularly the following week, onTuesday -- we communicated to the relevant parties at the White Houseand elsewhere our decision that as acting attorney general I would notcertify the program as to its legality and explained our reasoning indetail, which I will not go into here. Nor am I confirming it's anyparticular program.

That was Tuesday that we communicated that.

COMEY: The next day was Wednesday, March the 10th, the night ofthe hospital incident. And I was headed home at about 8 o'clock thatevening, my security detail was driving me. And I remember exactlywhere I was -- on Constitution Avenue -- and got a call from AttorneyGeneral Ashcroft's chief of staff telling me that he had gotten acall...

SCHUMER: What's his name?

COMEY: David Ayers.

That he had gotten a call from Mrs. Ashcroft from the hospital.She had banned all visitors and all phone calls. So I hadn't seen himor talked to him because he was very ill.

And Mrs. Ashcroft reported that a call had come through, and thatas a result of that call Mr. Card and Mr. Gonzales were on their wayto the hospital to see Mr. Ashcroft.

SCHUMER: Do you have any idea who that call was from?

COMEY: I have some recollection that the call was from thepresident himself, but I don't know that for sure. It came from theWhite House. And it came through and the call was taken in thehospital.

So I hung up the phone, immediately called my chief of staff,told him to get as many of my people as possible to the hospitalimmediately. I hung up, called Director Mueller and -- with whom I'dbeen discussing this particular matter and had been a great help to meover that week -- and told him what was happening. He said, "I'llmeet you at the hospital right now."

Told my security detail that I needed to get to George WashingtonHospital immediately. They turned on the emergency equipment anddrove very quickly to the hospital.

I got out of the car and ran up -- literally ran up the stairswith my security detail.

SCHUMER: What was your concern? You were in obviously a hugehurry.

COMEY: I was concerned that, given how ill I knew the attorneygeneral was, that there might be an effort to ask him to overrule mewhen he was in no condition to do that.

SCHUMER: Right, OK.

COMEY: I was worried about him, frankly.

And so I raced to the hospital room, entered. And Mrs. Ashcroftwas standing by the hospital bed, Mr. Ashcroft was lying down in thebed, the room was darkened. And I immediately began speaking to him,trying to orient him as to time and place, and try to see if he couldfocus on what was happening, and it wasn't clear to me that he could.He seemed pretty bad off.

SCHUMER: At that point it was you, Mrs. Ashcroft and theattorney general and maybe medical personnel in the room. No otherJustice Department or government officials.

COMEY: Just the three of us at that point.

I tried to see if I could help him get oriented. As I said, itwasn't clear that I had succeeded.

I went out in the hallway. Spoke to Director Mueller by phone.He was on his way. I handed the phone to the head of the securitydetail and Director Mueller instructed the FBI agents present not toallow me to be removed from the room under any circumstances. And Iwent back in the room.

I was shortly joined by the head of the Office of Legal Counselassistant attorney general, Jack Goldsmith, and a senior staffer ofmine who had worked on this matter, an associate deputy attorneygeneral.

So the three of us Justice Department people went in the room. Isat down...

I sat down in an armchair by the head of the attorney general'sbed. The two other Justice Department people stood behind me. AndMrs. Ashcroft stood by the bed holding her husband's arm. And wewaited.

And it was only a matter of minutes that the door opened and inwalked Mr. Gonzales, carrying an envelope, and Mr. Card. They cameover and stood by the bed. They greeted the attorney general verybriefly. And then Mr. Gonzales began to discuss why they were there-- to seek his approval for a matter, and explained what the matterwas -- which I will not do.

And Attorney General Ashcroft then stunned me. He lifted hishead off the pillow and in very strong terms expressed his view of thematter, rich in both substance and fact, which stunned me -- drawnfrom the hour-long meeting we'd had a week earlier -- and in verystrong terms expressed himself, and then laid his head back down onthe pillow, seemed spent, and said to them, "But that doesn't matter,because I'm not the attorney general."

SCHUMER: But he expressed his reluctance or he would not signthe statement that they -- give the authorization that they had asked,is that right?

COMEY: Yes.

And as he laid back down, he said, "But that doesn't matter,because I'm not the attorney general. There is the attorney general,"and he pointed to me, and I was just to his left.

The two men did not acknowledge me. They turned and walked fromthe room. And within just a few moments after that, Director Muellerarrived. I told him quickly what had happened. He had a brief -- amemorable brief exchange with the attorney general and then we wentoutside in the hallway.

SCHUMER: OK.

Now, just a few more points on that meeting.

First, am I correct that it was Mr. Gonzales who did just aboutall of the talking, Mr. Card said very little?

COMEY: Yes, sir.

SCHUMER: OK.

And they made it clear that there was in this envelope anauthorization that they hoped Mr. Ashcroft -- Attorney GeneralAshcroft would sign.

COMEY: In substance. I don't know exactly the words, but it wasclear that's what the envelope was.

SCHUMER: And the attorney general was -- what was his condition?I mean, he had -- as I understand it, he had pancreatitis. He wasvery, very ill; in critical condition, in fact.

COMEY: He was very ill. I don't know how the doctors graded hiscondition. This was -- this would have been his sixth day inintensive care. And as I said, I was shocked when I walked in theroom and very concerned as I tried to get him to focus.

SCHUMER: Right.

OK. Let's continue.

What happened after Mr. Gonzales and Card left? Did you have anycontact with them in the next little while?

COMEY: While I was talking to Director Mueller, an agent came upto us and said that I had an urgent call in the command center, whichwas right next door. They had Attorney General Ashcroft in a hallwayby himself and there was an empty room next door that was the commandcenter.

And he said it was Mr. Card wanting to speak to me.

COMEY: I took the call. And Mr. Card was very upset anddemanded that I come to the White House immediately.

I responded that, after the conduct I had just witnessed, I wouldnot meet with him without a witness present.

He replied, "What conduct? We were just there to wish him well."

And I said again, "After what I just witnessed, I will not meetwith you without a witness. And I intend that witness to be thesolicitor general of the United States."

SCHUMER: That would be Mr. Olson.

COMEY: Yes, sir. Ted Olson.

"Until I can connect with Mr. Olson, I'm not going to meet withyou."

He asked whether I was refusing to come to the White House. Isaid, "No, sir, I'm not. I'll be there. I need to go back to theDepartment of Justice first."

And then I reached out through the command center for Mr. Olson,who was at a dinner party. And Mr. Olson and the other leadership ofthe Department of Justice immediately went to the department, where wesat down together in a conference room and talked about what we weregoing to do.

And about 11 o'clock that night -- this evening had started atabout 8 o'clock, when I was on my way home. At 11 o'clock that night,Mr. Olson and I went to the White House together.

SCHUMER: Just before you get there, you told Mr. Card that youwere very troubled by the conduct from the White House room (ph), andthat's why you wanted Mr. Olson to accompany you.

Without giving any of the details -- which we totally respect interms of substance -- just tell me why. What did you tell him that soupset you? Or if you didn't tell him just tell us.

COMEY: I was very upset. I was angry. I thought I justwitnessed an effort to take advantage of a very sick man, who did nothave the powers of the attorney general because they had beentransferred to me.

I thought he had conducted himself, and I said to the attorneygeneral, in a way that demonstrated a strength I had never seenbefore. But still I thought it was improper.

And it was for that reason that I thought there ought to besomebody with me if I'm going to meet with Mr. Card.

SCHUMER: Can you tell us a little bit about the discussion atthe Justice Department when all of you convened? I guess it was thatnight.

COMEY: I don't think it's appropriate for me to go into thesubstance of it. We discussed what to do. I recall the associateattorney general being there, the solicitor general, the assistantattorney general in charge of the Office of Legal Counsel, seniorstaff from the attorney general, senior staff of mine. And we just --I don't want to reveal the substances of those...

SCHUMER: I don't want you to reveal the substance.

They all thought what you did -- what you were doing was theright thing, I presume.

COMEY: I presume. I didn't ask people. But I felt like we werea team, we all understood what was going on, and we were trying to dowhat was best for the country and the Department of Justice. But itwas a very hard night.

SCHUMER: OK.

And then did you meet with Mr. Card?

COMEY: I did. I went with Mr. Olson driving -- my securitydetail drove us to the White House. We went into the West Wing. Mr.Card would not allow Mr. Olson to enter his office. He asked Mr.Olson to please sit outside in his sitting area. I relented and wentin to meet with Mr. Card alone. We met, had a discussion, which wasmuch more -- much calmer than the discussion on the telephone.

After -- I don't remember how long, 10 or 15 minutes -- Mr.Gonzales arrived and brought Mr. Olson into the room. And the four ofus had a discussion.

SCHUMER: OK.

And was Mr. -- were you and Mr. Card still in a state of anger atone another at that meeting, or is it a little calmer, and why?

COMEY: Not that we showed.

SCHUMER: Right.

COMEY: It was much more civil than our phone conversation, muchcalmer.

SCHUMER: Why? Why do you think?

COMEY: I don't know. I mean, I had calmed down a little bit.I'd had a chance to talk to the people I respected. Ted Olson Irespect enormously.

SCHUMER: Right. OK.

Was there any discussion of resignations with Mr. Card?

COMEY: Mr. Card was concerned that he had heard reports thatthere were to be a large number of resignations at the Department ofJustice.

SCHUMER: OK. OK.

And the conversations, the issue, whatever it was, was notresolved.

COMEY: Correct. We communicated about it. I communicated againthe Department of Justice's view on the matter. And that was it.

SCHUMER: Right.

And you stated that the next day, Thursday, was the deadline forreauthorization of the program, is that right?

COMEY: Yes, sir.

SCHUMER: OK.

Can you tell us what happened the next day?

COMEY: The program was reauthorized without us and without asignature from the Department of Justice attesting as to its legality.And I prepared a letter of resignation, intending to resign the nextday, Friday, March the 12th.

SCHUMER: OK.

And that was the day, as I understand it, of the Madrid trainbombings.

COMEY: Thursday, March 11th, was the morning of the Madrid trainbombings.

SCHUMER: And so, obviously, people were very concerned with allof that.

COMEY: Yes. It was a very busy day in the counterterrorismaspect.

SCHUMER: Yet, even in light of that, you still felt so stronglythat you drafted a letter of resignation.

COMEY: Yes.

SCHUMER: OK.

And why did you decide to resign?

COMEY: I just believed...

SCHUMER: Or to offer your resignation, is a better way to putit?

COMEY: I believed that I couldn't -- I couldn't stay, if theadministration was going to engage in conduct that the Department ofJustice had said had no legal basis. I just simply couldn't stay.

SCHUMER: Right. OK.

Now, let me just ask you this. And this obviously is alltroubling.

As I understand it, you believed that others were also preparedto resign, not just you, is that correct?

COMEY: Yes.

SCHUMER: OK.

Was one of those Director Mueller?

COMEY: I believe so. You'd have to ask him, but I believe so.

SCHUMER: You had conversations with him about it.

COMEY: Yes.

SCHUMER: OK.

How about the associate attorney general, Robert McCallum?

COMEY: I don't know. We didn't discuss it.

SCHUMER: How about your chief of staff?

COMEY: Yes. He was certainly going to go when I went.

SCHUMER: Right.

How about Mr. Ashcroft's chief of staff?

COMEY: My understanding was that he would go as well.

SCHUMER: And how...

COMEY: I should say...

SCHUMER: Please.

COMEY: ... to make sure I'm accurate, I...

SCHUMER: This is your surmise, not...

COMEY: Yes.

I ended up agreeing -- Mr. Ashcroft's chief of staff asked mesomething that meant a great deal to him, and that is that I notresign until Mr. Ashcroft was well enough to resign with me. He wasvery concerned that Mr. Ashcroft was not well enough to understandfully what was going on. And he begged me to wait until -- this wasThursday that I was making this decision -- to wait til Monday to givehim the weekend to get oriented enough so that I wouldn't leave himbehind, was his concern.

SCHUMER: And it was his view that Mr. Ashcroft was likely toresign as well?

COMEY: Yes.

SCHUMER: So what did you do when you heard that?

COMEY: I agreed to wait. I said that what I would do is -- thatFriday would be last day. And Monday morning I would resign.

SCHUMER: OK.

Anything else of significance relevant to this line ofquestioning occur on Thursday the 11th, that you can recall?

COMEY: No, not that I recall.

SCHUMER: Thank you.

Now, let's go to the next day, which was March 12. Can you tellus what happened then?

COMEY: I went to the Oval Office -- as I did every morning asacting attorney general -- with Director Mueller to brief thepresident and the vice president on what was going on on JusticeDepartment's counterterrorism work.

We had the briefing. And as I was leaving, the president askedto speak to me, took me in his study and we had a one-on-one meetingfor about 15 minutes -- again, which I will not go into the substanceof. It was a very full exchange. And at the end of that meeting, atmy urging, he met with Director Mueller, who was waiting for medownstairs.

He met with Director Mueller again privately, just the two ofthem. And then after those two sessions, we had his direction to dothe right thing, to do what we...

SCHUMER: Had the president's direction to do the right thing?

COMEY: Right.

We had the president's direction to do what we believed, what theJustice Department believed was necessary to put this matter on afooting where we could certify to its legality.

And so we then set out to do that. And we did that.

SCHUMER: OK.

So let me just (inaudible) -- this is an amazing story, has anamazing pattern of fact that you recall.

SPECTER: Mr. Chairman, could you give us some idea when yourfirst round will conclude?

SCHUMER: As soon as I ask a few questions here. Fairly soon.

(OFF-MIKE)

SCHUMER: Yes.

And, Senator Specter, you will get the same amount of time.

SCHUMER: I thought with Mr. Comey's telling what happened...

(CROSSTALK)

SPECTER: Just may the record show that you're now 16 minutes and35 seconds over the five minutes and...

SCHUMER: I think the record will show it.

SPECTER: Well, it does now.

(LAUGHTER)

SCHUMER: OK, thank you.

And I think most people would think that those 16:35 minutes wereworth hearing.

SPECTER: Well, Mr. Chairman, we do have such a thing as a secondround, and there are a lot of senators waiting...

SCHUMER: Let me ask you this: So in sum, it was your beliefthat Mr. Gonzales and Mr. Card were trying to take advantage of an illand maybe disoriented man to try and get him to do something thatmany, at least in the Justice Department, thought was against the law?Was that a correct summation?

COMEY: I was concerned that this was an effort to do an end-runaround the acting attorney general and to get a very sick man toapprove something that the Department of Justice had already concluded-- the department as a whole -- was unable to be certified as to itslegality. And that was my concern.

SCHUMER: OK.

And you also believe -- and you had later conversations withAttorney General Ashcroft when he recuperated, and he backed yourview?

COMEY: Yes, sir.

SCHUMER: Did you ever ask him explicitly if he would haveresigned had it come to that?

COMEY: No.

SCHUMER: OK.

But he backed your view over that what was being done, or whatwas attempting to being done, going around what you had recommended,was wrong, against the law?

COMEY: Yes.

And I already knew his view from the hour we had spent togethergoing over it in great detail a week before the hospital incident.

SCHUMER: Yes.

And the FBI director, Mueller, backed your view over that of Mr.Gonzales as well -- is that right? -- in terms of whether the programcould continue to be implemented the way Counsel Gonzales wanted it tobe.

COMEY: The only reason I hesitate is it was never DirectorMueller's job or position to be drawing a legal conclusion about theprogram; that he was very supportive to me personally. He's one ofthe finest people I've ever met and was a great help to me when I felta tremendous amount of pressure and felt a bit alone at the Departmentof Justice.

But it was not his role to opine on the legality.

SCHUMER: How about Jack Goldsmith, the head of the Office ofLegal Counsel? Did he opine on the legality?

COMEY: Yes. He had done a substantial amount of work on thatissue. And it was largely OLC, the Office of Legal Counsel's work,that I was relying upon in drawing my -- in making my decision.

SCHUMER: OK. Just two other questions.

Have you ever had the opportunity to recall these events on therecord in any other forum?

COMEY: No.

SCHUMER: OK. And...

COMEY: I should...

SCHUMER: Go ahead.

COMEY: I was interviewed by the FBI and discussed these eventsin connection with a leak investigation the FBI was conducting.

SCHUMER: And you gave them these details then.

COMEY: Yes.

SCHUMER: Thank you.

COMEY: But not -- by forum I've never testified about it.

SCHUMER: And after you stood your ground in March of 2004, didyou suffer any recriminations or other problems at the department?

COMEY: I didn't. Not that I'm aware of.

SCHUMER: OK.

Well, let me just say this, and then I'll call on Senator Specterwho can have as much time as he thinks is appropriate.

The story is a shocking one. It makes you almost gulp.

And I just want to say, speaking for myself, I appreciate yourintegrity and fidelity to rule of law. And I also appreciate AttorneyGeneral Ashcroft's fidelity to the rule of law as well, as well as themen and women who worked with you and stuck by you in this.

When we have a situation where the laws of this country -- therules of law of this country are not respected because somebody thinksthere's a higher goal, we run askew of the very purpose of whatdemocracy and rule of law are about.

SCHUMER: And this -- again, this story makes me gulp.

* * * *

SCHUMER: Let me ask you this: So in sum, it was your belief that Mr. Gonzales and Mr. Card were trying to take advantage of an ill and maybe disoriented man to try and get him to do something that many, at least in the Justice Department, thought was against the law? Was that a correct summation?

COMEY: I was concerned that this was an effort to do an end-run around the acting attorney general and to get a very sick man to approve something that the Department of Justice had already concluded -- the department as a whole -- was unable to be certified as to its legality. And that was my concern.

SCHUMER: OK. And you also believe -- and you had later conversations with Attorney General Ashcroft when he recuperated, and he backed your view?

COMEY: Yes, sir.

SCHUMER: Did you ever ask him explicitly if he would have resigned had it come to that?

COMEY: No.

SCHUMER: OK. But he backed your view over that what was being done, or what was attempting to being done, going around what you had recommended, was wrong, against the law?

COMEY: Yes. And I already knew his view from the hour we had spent together going over it in great detail a week before the hospital incident.

SCHUMER: Yes. And the FBI director, Mueller, backed your view over that of Mr. Gonzales as well -- is that right? -- in terms of whether the program could continue to be implemented the way Counsel Gonzales wanted it to be.

COMEY: The only reason I hesitate is it was never Director Mueller's job or position to be drawing a legal conclusion about the program; that he was very supportive to me personally. He's one of the finest people I've ever met and was a great help to me when I felt a tremendous amount of pressure and felt a bit alone at the Department of Justice. But it was not his role to opine on the legality.

SCHUMER: How about Jack Goldsmith, the head of the Office of Legal Counsel? Did he opine on the legality?

COMEY: Yes. He had done a substantial amount of work on that issue. And it was largely OLC, the Office of Legal Counsel's work, that I was relying upon in drawing my -- in making my decision.

* * * *

SCHUMER: The story is a shocking one. It makes you almost gulp. And I just want to say, speaking for myself, I appreciate your integrity and fidelity to rule of law. And I also appreciate Attorney General Ashcroft's fidelity to the rule of law as well, as well as the men and women who worked with you and stuck by you in this. When we have a situation where the laws of this country -- the rules of law of this country are not respected because somebody thinks there's a higher goal, we run askew of the very purpose of what democracy and rule of law are about. Amd this -- again, this story makes me gulp.

* * * *

SPECTER: And as the acting attorney general, you were doing exactly what you should do in standing up for your authority and to stand by your guns and to do what you thought was right. It has some characteristics of the Saturday Night Massacre, when the other officials stood up and they had to be fired in order to find someone who would -- deputy attorney general and others would not fire the special prosecutor. So that was commendable. When you finally got to the place where the buck doesn't stop, when you got to the president -- as I understand your testimony -- the president told you to do what you thought was right. Is that correct?

COMEY: Yes, sir.

SPECTER: So the president backed you up. And it was necessary to make changes in the terrorist surveillance program to get the requisite certification by the acting attorney general -- that is you?

COMEY: And I may be being overly cautious, but I'm not comfortable confirming what program it was that this related to. And I should be clear. The direction -- as I said, I met with the president first, the Director Mueller did. COMEY: And it was Director Mueller who carried to me the president's direction to do what the Department of Justice thinks is right to get this where the department believes it ought to be. And we acted on that direction.

SPECTER: Director Mueller told you to -- the president said to do what you thought was right?

COMEY: Correct.

SPECTER: Well, how about what the president himself told you?

COMEY: I don't want to get into what -- the reason I hesitate, Senator Specter, is the right thing was done here, in part -- in large part because the president let somebody like me and Bob Mueller meet with him alone. And if I talk about that meeting, I worry that the next president who encounters this is not going to let the next me get close to them to talk about something this important. So I'm -- I want to be very careful that I don't talk about what the president and I talked about. I met with the president. We had a full and frank discussion, very informed. He was very focused. Then Director Mueller met with the president alone. I wasn't there. Director Mueller carried to me the president's direction that we do what the Department of Justice wanted done to put this on a sound legal footing.

* * * *

SPECTER: And when you talked to White House Counsel Gonzales, did he try to pressure you to reverse your judgment?

COMEY: No. He disagreed, again, on the merits of the decision. And we had engaged on that, had full discussions about that. But he never tried to pressure me, other than to convince me that I was wrong.

SPECTER: Well, Mr. Comey, did you have discussions with anybody else in the administration who disagreed with your conclusions?

COMEY: Yes, sir.

SPECTER: Who else?

COMEY: Vice president.

SPECTER: Anybody else?

COMEY: Members of his staff.

SPECTER: Who on his staff?

COMEY: Mr. Addington disagreed with the conclusion. And I'm sure there were others who disagreed, but...

SPECTER: Well, I don't want to know who disagreed. I want to know who told you they disagreed.

COMEY: OK.

SPECTER: Addington?

COMEY: Mr. Addington. The vice president told me that he disagreed. I don't remember any other White House officials telling me they disagreed.

SPECTER: OK. So you've got Card, Gonzales, Vice President Cheney and Addington who told you they disagreed with you.

COMEY: Yes, sir.

SPECTER: Did the vice president threaten you? COMEY: No, sir.

SPECTER: Did Addington threaten you?

COMEY: No, sir.

SPECTER: So all these people told you they disagreed with you? Well, why in this context, when they say they disagreed with you and you're standing by your judgment, would you consider resigning? You were acting attorney general. They could fire you if they wanted to. The president could replace you. But why consider resigning? You had faced up to Card and Gonzales and Vice President Cheney and Addington, had a difference of opinion. You were the acting attorney general, and that was that. Why consider resigning?

COMEY: Not because of the way I was treated but because I didn't believe that as the chief law enforcement officer in the country I could stay when they had gone ahead and done something that I had said I could find no legal basis for.

SPECTER: When they said you could find no legal basis for?

COMEY: I had reached a conclusion that I could not certify as...

SPECTER: Well, all right, so you could not certify it, so you did not certify it. But why resign? You're standing up to those men. You're not going to certify it. You're the acting attorney general. That's that.

COMEY: Well, a key fact is that they went ahead and did it without -- the program was reauthorized without my signature and without the Department of Justice. And so I believed that I couldn't stay...

SPECTER: Was the program reauthorized without the requisite certification by the attorney general or acting attorney general?

COMEY: Yes.

SPECTER: So it went forward illegally.

COMEY: Well, that's a complicated question. It went forward without certification from the Department of Justice as to its legality.

SPECTER: But the certification by the Department of Justice as to legality was indispensable as a matter of law for the program to go forward, correct?

COMEY: I believed so.

SPECTER: Then it was going forward illegally.

COMEY: Well, the only reason I hesitate is that I'm no presidential scholar. But if a determination was made by the head of the executive branch that some conduct was appropriate, that determination -- and lawful -- that determination was binding upon me, even though I was the acting attorney general, as I understand the law. And so, I either had to go along with that or leave. And I believed that I couldn't stay -- and I think others felt this way as well -- that given that something was going forward that we had said we could not certify as to its legality.

SPECTER: Well, I can understand why you would feel compelled to resign in that context, once there had been made a decision by the executive branch, presumably by the president or by the president, because he was personally involved in the conversations, that you would resign because something was going forward which was illegal. The point that I'm trying to determine here is that it was going forward even though it was illegal.

COMEY: And I know I sound like I'm splitting hairs, but...

SPECTER: No, I don't think there's a hair there.

COMEY: Well, something was going forward without the Department of Justice's certification as to its legality. It's a very complicated matter, and I'm not going to go into what the program was or what the dimensions of the program...

SPECTER: Well, you don't have to. If the certification by the Department of Justice as to legality is required as a matter of law, and that is not done, and the program goes forward, it's illegal. How can you -- how can you contest that, Mr. Comey?

COMEY: The reason I hesitate is I don't know that the Department of Justice's certification was required by statute -- in fact, it was not, as far as I know -- or by regulation, but that it was the practice in this particular program, when it was renewed, that the attorney general sign off as to its legality. There was a signature line for that. And that was the signature line on which was adopted for me, as the acting attorney general, and that I would not sign. So it wasn't going forward in violation of any -- so far as I know -- statutory requirement that I sign off. But it was going forward even though I had communicated, "I cannot approve this as to its legality." And given that, I just -- I couldn't, in good conscience, stay.

SPECTER: Well, Mr. Comey, on a matter of this importance, didn't you feel it necessary to find out if there was a statute which required your certification or a regulation which required your certification or something more than just a custom?

COMEY: Yes, Senator. And I...

SPECTER: Did you make that determination?

COMEY: Yes, and I may have understated my knowledge. I'm quite certain that there wasn't a statute or regulation that required it, but that it was the way in which this matter had operated since the beginning. I don't -- I think the administration had sought the Department of Justice, the attorney general's certification as to form and legality, but that I didn't know, and still don't know, the source for that required in statute or regulation.

SPECTER: OK. Then it wasn't illegal.

COMEY: That's why I hesitated when you used the word "illegal."

SPECTER: Well, well, OK. Now I want your legal judgment. You are not testifying that it was illegal. Now, as you've explained that there's no statute or regulation, but only a matter of custom, the conclusion is that even though it violated custom, it is not illegal. It's not illegal to violate custom, is it?

COMEY: Not so far as I'm aware.

SPECTER: OK. So what the administration, executive branch of the president, did was not illegal.

COMEY: I'm not saying -- again, that's why I kept avoiding using that term. I had not reached a conclusion that it was. The only conclusion I reached is that I could not, after a whole lot of hard work, find an adequate legal basis for the program.

SPECTER: OK. Well, now I understand why you didn't say it was illegal. What I don't understand is why you now won't say it was legal.

COMEY: Well, I suppose there's an argument -- as I said, I'm not a presidential scholar -- that because the head of the executive branch determined that it was appropriate to do, that that meant for purposes of those in the executive branch it was legal. I disagreed with that conclusion. Our legal analysis was that we couldn't find an adequate legal basis for aspects of this matter. And for that reason, I couldn't certify it to its legality.

SPECTER: OK. I will not ask you -- I have a rule never to ask the same question more than four times... (LAUGHTER) ... so I will not ask you again whether necessarily from your testimony the conclusion is that what the president did was legal -- not illegal.

ii-v are correct, I believe, although I don't recall that he specifically said it was OLC who developed the requisite modifications of the program.

ii was particularly dramatic. The President reauthorized the program despite the fact that it did not have the signature of him as head of DoJ certifying the legality of the program.

i is probably accurate, but Comey avoided being at all explicit about any of that - he refused to even say which program he was testifying about - so that is not an accurate account of his testimony. He testified that he concluded, on the basis of analysis from OLC of course, that there was no legal basis for parts of the program under review.

oh and one more thing under iv. On March 12, I believe, Comey spoke alone with the President for 15 minutes about the matter. Comey did not detail the substance of the conversation, characterizing it as frank. And resisting the lead offered him by Specter, Comey was clear that the President did not at the end of that discussion direct him to bring the program into compliance with the law. But Comey suggested, I believe, that the President speak then with Mueller, which he did - and after that conversation, Mueller came back to Comey and conveyed the message from the President that they were to do what was necessary to make sure the program could be fit in compliance with the law.

Oh yeah. Comey was crystal clear in his belief that Gonzales and Card were inappropriately seeking to take advantage of a very sick man - Ashcroft - in order to override DoJ's refusal to certify the legality of the program. And the only reason Card and Gonzales got in to see Ashcroft in the first place - Mrs. Ashcroft had banned all visits and all phone calls to her very ill husband in intensive care - was because of a call to Mrs. Ashcroft that Comey understood to have come from the President.

This should spawn an expanded investigation into the warrantless surveillance program and legal liability at the highest levels. How can there not be a special counsel now, and possibly a grand jury?

On a specific detail, I wonder why the FBI director was intimately involved in these dramatic events, but the NSA director apparently was not.

The publicly described "Terrorist Surveillance Program" was all about activities of the NSA to intercept communications traffic involving at least one party abroad. The New York Times stories described large-scale intercepts by the NSA at centralized telecom switches.

But my understanding is that the FBI typically performs purely domestic intercepts, as well as physical searches, for purposes of both criminal investigations and foreign-intelligence surveillance.

Perhaps that offers an important clue. In any event, there has always been a mystery about what was changed in the actual program in 2004 to render it even colorably legal in the opinion of DOJ during this time period. We also do not have the OLC legal opinions from 2002-2004 and later rationalizing any form of the program, although we have been told by Gonzales that the legal rationale changed over time.

(Bear in mind that even the modified program, as described publicly by Gonzales and other administration officials last year, has been held to be illegal by a federal district court. That ruling is being appealed, and DOJ relies mostly on technical arguments of standing and privilege rather than merits arguments in an effort to overturn it.)

Comey said no such thing despite the efforts of some Senators to compel such an admission when Comey was under the disadvantage of not being able to discuss a top secret program in open session. I believe this is the key passage in Comey's testimony concerning the "requirement" for the AG to "certify" the unstated program:

COMEY: Yes, and I may have understated my knowledge. I'm quite certain that there wasn't a statute or regulation that required it, but that it was the way in which this matter had operated since the beginning. I don't -- I think the administration had sought the Department of Justice, the attorney general's certification as to form and legality, but that I didn't know, and still don't know, the source for that required in statute or regulation.

SPECTER: OK. Then it wasn't illegal.

COMEY: That's why I hesitated when you used the word "illegal."

SPECTER: Well, well, OK. Now I want your legal judgment. You are not testifying that it was illegal. Now, as you've explained that there's no statute or regulation, but only a matter of custom, the conclusion is that even though it violated custom, it is not illegal. It's not illegal to violate custom, is it?

What was illegal was the underlying offense of violating FISA, which includes criminal sanctions.

The only rationale that has ever been advanced was that the attorney general had written opinions saying the statute didn't apply under some undisclosed legal theory. Now we know that for this period of time, the attorney general actually refused to sign off on such an opinion.

There are two different arguments potentially being made here in the breathless posts concerning Mr. Comey's testimony:

1) The President "broke the law" which allegedly required the Attorney General to certify the program for it to continue.

This argument fails because there was no law requiring a certification, there was a custom.

2) The President "broke the law" because Comey would not sign off on the program as legal for reasons which he does not give in his testimony.

This argument also fails because Comey does not say that the program is illegal, but only says that he cannot say as a matter of law that it was legal. This is a fine but a fundamental distinction. Comey admitted that there were differing legal opinions and the law was uncertain. Under those circumstances, I would not have signed off that the program was legal because a court may later find that it was not. The most I would do is give my personal legal opinion along with notice of other possible outcomes in a memo.

It appears the White House was having the AG sign off on the program as CYA in an uncertain legal environment to show that they had consulted with attorneys and received a green light that it was legal.

It would be interesting to see exactly what the AG was actually asked to certify. When I first started reading the transcript, I thought that maybe the AG was certifying that the program fell outside of FISA under Section 1802.

However, Comey finished up by stating that the certification was not required by statute and was only a custom. If he was being asked to make a Section 1802 certification, I am sure that Comey would be aware of this.

Thus, we appear to be left with some sort of a CYA certification which the Executive could point to if the matter came before a court. Pretty strange.

It appears the White House was having the AG sign off on the program as CYA in an uncertain legal environment to show that they had consulted with attorneys and received a green light that it was legal....

... and then saying they'd asked for a green light and falsely claiming they'd gotten one?

Christ on a crutch, Bart. He stated unequivocally that "our" legal analysis (read the DOJ) was that there was no legal basis for the program. He also indicates that he doesn't know whether it was custom or statute that had the DOJ certify as to the legality of such matters. Nevertheless, it's pretty clear that as the legal arm of the Executive the DOJ would go a LONG ways towards determining the legality of a given program. Some might even say that as the home of the "top cop" in the land, the DOJ gets the final word as to the legality of a program or policy prior to its implementation.

Given how this administration works in terms of doing whatever it wants, do you honestly believe that if the WH attorney's had sound legal basis for the program, they would have gone to such great lengths to get DOJ approval? They did not have a leg to stand on and they knew. Hence, they tried to browbeat the DOJ into signing off on the program, even going so far as to bully a purportedly dazed and confused Ashcroft into approving the program.

From now on, can you simply post a form comment that says "I believe that anything and everything this administration does is legal, laws and statutes to the contrary notwithstanding"? It would save a lot of bandwidth. Unfortunately, it would put the makers of Dramamine out of business because folks would no longer have to read your ridiculous and utterly nauseating spin.

Whomever stated that you were so far out of touch with reality that it's impossible to have a conversation with you was spot on.

The sad thing is, if the same jurisprudence rules (evidence, trial rights, etc.) that this administration has applied to their "enemies" was applied to their own (even admitted) acts, about 2/3 of the cabinet and most of the West Wing would be sitting in solitary confinement somewhere, dreading the next meeting with their gaolers.

My strong hunch is that this "warrantless wiretapping" program the Gonzo and the WH were so determined to put into place was not intended to catch "terrorists," but rather to get dirt on their political enemies - mostly Democrats. We have seen the WH exposed more than ever recently about their blatant and ruthless politicization of everything in the government. If the taps were actually against suspected "terrorists," as claimed, there would have been no reason to avoid the scrutiny and accountability of the courts. No, BushCo was after information on people they knew no court would approve tapping their phone. It is the only logical explanation I can think of.

Another essential point I missed making in my hurry of composing my previous post is that lack of accountability and transparency to a court or any other authority makes the wireless wiretap program open for profound abuse of power. Besides getting an advantage over their political Democratic opponents, the illegal wiretap program can include government whistleblowers and muckraking journalists. It can also be used to reveal extremely private corporate data, including all oil company and shipping information, all tenders for all projects and work, including details of the bids, all banking and personnel data, all tax and medical data and all plans and current and historical records of everyone communicating to, from and within the US. Once you have that data, you can start controlling in a very big way.

But the scope of this intended program might have been even worse: It is possible it could have effected key insertions into contract terms, personnel data or financial figures and into any data transfer in any company, government agency or any private communication from anyone to anyone at any time.

Once they get this power, there is no move that anyone can make (and no purchase, no sale, no association and assembly) without the knowledge and illicit actions of the parties in control of this program. This is about Total Information Awareness and control.

This is not merely a "violation of law." It is time you nitpicking lawyers recognize that the motivation for this illegal wiretap program was most likely to abuse power in profound ways. This is the same thing Nixon did and got busted for. BushCo is simply trying to give it some semblance of going through a "legal" approval process. I hope Congress calls them on this and impeaches their crooked asses.

I think ewastud is spot on here, both in terms of partisanship and in general terms of the rise of what Professor Balkin calls the national surveillance state. Post Nixon we had the dismantling of cointelpro and the creation of regulations which would later be called "stovepiping" and which would take scapegoat status for the failure of our intelligence community to act on the data it had which would have prevented the attacks of nine-one-one. Papa Bush and others in the intelligence community had been trying ever since the Church Committee to put something new in cointelpro's old place. After nine-one-one they got their wish, with H.R. 3162, the so-called "patriot" act which, in reality, has precious little to do with terrorism in general, the WTC destruction in particular, but which undoes all that scapegoated stovepiping.

This administration, especially Bush-the-younger's handlers, are all quite invested in secrecy for its own sake and spy powers for their own sake. It's what you get when you elect a former chief spook to your highest offices and then follow up in a few years with his idiot son.

"My strong hunch is that this "warrantless wiretapping" program the Gonzo and the WH were so determined to put into place was not intended to catch "terrorists," but rather to get dirt on their political enemies - mostly Democrats."

Good point: Quick, somebody check to see if they've hired an ex-bar bouncer to handle White House security!

Bart: ...Comey does not say that the program is illegal, but only says that he cannot say as a matter of law that it was legal. This is a fine but a fundamental distinction.

No, you lying, cowardly cheat, it isn't a fine distinction at all. The President sought counsel regarding an action, and his counsel said, "Dude, I'm not going to be the one to say _that_ is legal." The President went ahead anyway. Comey didn't need to say to Specter whether the program in question was legal or illegal, nor did he need to say it was legal or illegal to proceed without the AG's (in this case Comey's) signature. It suffices that it was a clear abuse of power, as one commenter here put it, a failure to even play by the rules they were making up as they went along. The President has a duty to carry out the functions of his office in a lawful manner, and proceeding with a program which his counsel would not sign off on is a clear violation of that duty. And, not that the literate readers of this blog need reminding but just because you seem to have a slip-shod relationship with reality, this wasn't the ACLU telling Bush it had concerns with some program, it was the Attorney General, an office which has been damningly and notoriously compliant with White House requests. That's the fine distinction which will suffice to put either Dick or Nancy in the White House...if our citizens have the chutzpah to do what's right. If Dick goes down with Bush the Younger, or on some other count, all the better.

By the way, did you ever look up all those big words in the MCA and find the ones that said a citizen has means of proving their citizenship when picked up as an AUEC in error? No? Still looking? Newt hasn't answered your letters? Pity. Greater pity still that all your energy and even arguable talent is wasted in defense of such pigs and their un-American policies. You may have served with your body but your spirit seems never to have been touched by that of our Constitution.

Something else that is interesting is that Justice had apparently signed of on this program multiple times before Mr. Comey assumed the office of AG by illness and declined to do so.

What changed?

Given that Justice did later sign off on the program again after presumably NSA made Justice requested changes to the prorgam, was this simply a power play by Justice?

Bart, you seem to want to sever Comey from the rest of the DOJ, Ashcroft, Jack Goldsmith, etc. It is clear from Comey's testimony that, regardless of what it was about the program that changed, all of the major figures responsible for certifying the legality of the program refused to do so. Thus, I don't see how this was a "power play by Justice." If it was, what would there goal have been? What power did they want that they didn't have?

Bart writes:Something else that is interesting is that Justice had apparently signed of on this program multiple times before Mr. Comey assumed the office of AG by illness and declined to do so.

Isn't it true that Ashcroft also indicated that he didn't think it was legal, and wouldn't certify it as legal if he was acting as AG?

What changed?

Good question. I'd like to know what happened to convince the Attorney General of the United States that the program was illegal. What was so nefarious that even Ashcroft clearly thought it to be illegal.

It also seems to me that the question of whether or not statute or custom required the AG to certify an action to be legal is a red herring. The AGs - both the acting and the disposed - clearly believed it was illegal.

Does the AG just refusing to certify something as legal that violates a law mean anything legally? Its not as if its a precedent, is it? Its just the AG refusing to agree that something in violation of enacted law is legal - correct?

I do not want to shift the subject on this thread. I will not post on this further and urge others not to respond. However, I would suggest that this series of related questions from last night's GOP debate would make a very interesting future discussion.

I was wondering as well whether something had changed in the program which prompted Justice to withdraw its support, but the only changes discussed were those requested by Justice as the price of their support.

robert:

I withdraw my earlier suggestion that justice was merely being cautious in an uncertain legal environment. Based on Justice's approval of a change program after this confrontation, I strongly suspect this was a power play by Justice to get changes they desired in the program.

It's not really surprising that you would change your tack after taking in the GOP debates and assimilating Rove's talking points, I know how important it is for you ditto-heads to stay on message. But, you lying, cowardly cheat I didn't ask you about any of that; I made statements, but did not ask you anything regarding the Comey testimony. I did ask about the text of the MCA. Been waiting for months for an answer with text from the MCA. Your feigned civility is misguided. Give me text from the MCA that says an innocent citizen picked up as an AUEC can prove their citizenship. But pardon me for not holding my breath. And if you can't answer with text from the MCA why not just pony up and say so?

Meanwhile, if this is the best the GOP machine can do, "It was a DoJ power play" (with Ashcroft nigh unto death yet) well, it isn't going to be good enough, because we have clear record now of a president who was willing to go ahead with an illegal program. That is entirely separate from the issue of whether the program was or wasn't illegal, and whether going ahead without AG signature was or wasn't legal. The bottom line is Bush (whom you claim not to care for but whom you can't seem to stop defending) was willing to go ahead with acts despite AG protests which could only lead a reasonable person to question the legality of said acts. Bush acted with a disregard of the law, which is an abuse of power and a betrayal of his oath of office.

anderson: Next week, we need to try out Ignore Bart's Comments Week...

I'm of two minds on that. I think my feelings for Bart are clear, but absent his voice will we just be preaching to the choir and patting ourselves on the back? I'm all for riding him like a soggy diaper when he's playing the fool, but if one truly subscribes to the principles of dialectic then totally shunning him is less valuable than holding his feet to the fire and repeatedly inviting him to join the larger community with a higher purpose than merely protecting his fragile world view. With just a little more personal confidence and intellectual integrity his energy would be a tremendous asset.

Sorry to talk about you in the 3rd person, Bart. But I stand by what I say. People find you eternally engaging only because it is all but impossible to believe someone so dedicated, energetic and articulate can be totally written off...despite some of your more egregious behavior here and elsewhere which has caused some to do exactly that. Hell, I'm still open to private correspondence in search of rapprochement any time you are willing to email me directly. I've made the offer many a time, and it stands open.

Bart: I strongly suspect this was a power play by Justice to get changes they desired in the program.

Other than concerns over the legality of the program, why would Justice CARE?

Everyone who posts here apparently cares about how the program is run. Why would Justice be different? They were in a position to actually compel change.

Take off your partisan cap and try thinking critically about the sequence of events.

Prior to this confrontation, Justice signed off on the program multiple times.

During this confrontation, Justice told the White House that it had some objections.

Justice recommended some changes to the program.

The program was modified as Justice requested and then Justice signed off on the program again.

That sequence of events strongly suggests that Justice decided they wanted changes to the program and blackmailed the White House into making those changes by withholding its approval for the program.

We learned a few months back that Justice was negotiating with the FISA court ways in which to obtain FISA warrants for the program. Were these changes requested by Justice as the price of signing off part of that process?

Of course the DOJ was attempting to compel change, but your potrayal strongly insinuates that:

a) the program was legal as it was(which Comey's testimony directly refutes)

and

b) that the DOJ was attempting to gain power/sway that it had no right to in the first place, as you typically don't "blackmail" someone into complying with the law. Similarly, a "power play" implies that power is up for grabs or someone is attempting to expand their power. DOJ upholding the law doesn't qualify.

Threatening to resign dealt with standing for principle, whereas your characterization is that of political gamesmanship. That's why your comment is nonsense.

Bart: That sequence of events strongly suggests that Justice decided they wanted changes to the program and blackmailed the White House into making those changes by withholding its approval for the program.

Cowardly. Lying. Cheat. "Blackmail"? Being willing to put one's career on the line to oppose something is blackmail? Do you just sleep with Rove tapes so these spin points become second nature?

The President ran with a program the legality of which no reasonable person could fail to question---because the AGs, acting and appointed, explicitly questioned that legality. Tell me, Bart, does reckless indifference for law or consequences sound like a familiar criterion? Say, in the context of drunk driving? "Officely, Mr. Honester, I didn't mean to run that stop sign and kill that little kid. Them three martwonies didn't make me as think as you drunk I am."

The White House ran with a program with blatant disregard for it's legality, they ran with it legal or not. That is a dereliction of Presidential duty, an impeachable abuse of power which you can't wish away.

"Most importantly: Can anyone think of any historical examples where the Department of Justice told the White House that a course of conduct would be unlawful (in this case, a felony), and the President went ahead and did it anyway, without overruling DOJ's legal conclusion?"

What is the author's authority for saying a felong was committed? Was this party of FISA. This isn't my area of law, but from reading the transcripts I felt no laws were clearly violated.

It's more shocking that some guy like Gonzales (who seems about as indepenedent as Cheney) is now the AG and in control of the DOJ. It's very suggestive about the USA firings.

John says: What is the author's authority for saying a felong was committed?

FISA provides the following:

(a) Prohibited activities A person is guilty of an offense if he intentionally— (1) engages in electronic surveillance under color of law except as authorized by statute; or (2) discloses or uses information obtained under color of law by electronic surveillance, knowing or having reason to know that the information was obtained through electronic surveillance not authorized by statute.

The penalty for violating this provision is up to 5 years in prison and/or up to $10,000. By the terms of the possible punishment, violations of FISA are classified as felonies.

"Even" Ashcroft? Really, aside from the salad oil and drapes on the statues, what's the beef with him? That he finally committed the Justice department to recognizing the 2nd amendment was a civil liberty like amendments 1 and 3-8?

brett: "Even" Ashcroft? Really, aside from the salad oil and drapes on the statues, what's the beef with him?

Seriously? See, some would think it's bad form to troll without actually knowing the standard arguments of your intended victims. We're not here to do your homework for your trolling. Or are you just feigning ignorance at why liberals loathe Ashcroft? Either way, nice try, and come on back when you actually have something to contribute.

That's too bad, Bart, you don't want to continue this discussion, because I agree with you that Comey does not say that the program is illegal (john or adam -- that includes "unlawful" and "felony") but only testified that he could not, without changes which were put into place within weeks, certify as a matter of law that it was legal. That's not a FINE distinction at all.

I've always wanted to speak to a couple people who got their law degrees from an online school of law to see how their epxerience of studying law differed from mine - I went to a brick & mortar uni - and have always been interested in the online study experience.famous law professors